Guschl v. Schmidt

• Decision Date: 06 April 1954
• Citation: 63 N.W.2d 759,266 Wis. 410
• Parties: GUSCHL, v. SCHMIDT et al.
• Court: Wisconsin Supreme Court

Page 759

63 N.W.2d 759

266 Wis. 410

GUSCHL, v. SCHMIDT et al.

Supreme Court of Wisconsin.

April 6, 1954.

Action by the plaintiff Joseph J. Guschl to recover from the defendants Walter H. Schmidt and Gertrude Schmidt, his wife, a balance alleged to be due plaintiff on a contract for remodeling the defendants' home; and counterclaim by the defendants to recover from the plaintiff the amount previously paid by them on the contract as their damages for alleged breach of contract by plaintiff.

The plaintiff Guschl is a carpenter contractor and builder. The defendants Schmidt own a small residence property in the town of Mequon in Ozaukee county, which they had purchased in October, 1943, for $4,850. In the spring of 1949, the Schmidts contacted Guschl and wanted him to submit a price for remodeling their home. He informed them that before he could do so there would have to be plans drawn. He told the Schmidts he knew an architect who had drawn plans for other customers and that he would bring him out and introduce him to the Schmidts. This Guschl did, the architect being one Berres.

Berres, with the assistance of Guschl, measured the existing house, but Berres did not remember who held the tape and who read off the measurements. A mistake was made in measuring the outside length of the house, such length having been recorded as 24 feet, when it was actually 22 feet. The Schmidts told Berres that which they wanted done and provided him with rough sketches. From the measurements taken, and the sketches and directions furnished by the Schmidts, Berres prepared plans in the form of blueprints. Guschl was with Berres when he brought the blueprints to the Schmidts. Included with the blueprints was Berres' statement for $40 to cover the cost of preparing the plans made out to the Schmidts, which was handed to the Schmidts with the plans. When Guschl saw this statement he took it and said that he would assume the payment of it, but neither the Schmidts nor Guschl ever made payment to Berres for his services in drawing the plans.

A contract dated July 25, 1949, was entered into between the parties whereby Guschl undertook to remodel the Schmidts' home according to the plans for $6,200. The plans, among other things, provided for building additions onto opposite ends of the house as well as ripping out interior partitions and remodeling the interior. Also included in such $6,200 price were the furnishing and installing of a new furnace and the bathroom fixtures.

Guschl first constructed the additions on the outside before doing the interior tearing out of partitions and erecting new ones. The fact that the old portion of the building was 2 feet shorter than shown in the plans was not discovered until Guschl was partly along with the interior work. As a result of the shortage, Guschl made the dimensions of the kitchen smaller and also those of the smaller of the two bedrooms. The result was that the kitchen was of inconvenient size and the bedroom was rendered practically unusable as a bedroom, although the Schmidts did manage to get a bed into it.

During all of the work the Schmidts resided in the premises and watched the work from day to day. They paid $3,500 to Guschl after the exterior work was done, and the further sum of $2,100 after the inside partitions were put up and lathed, but before the wood trim was installed. They also paid him $74.84 for extras.

Guschl instituted the within action to recover $573.86 balance which he alleged was due him on the contract. The Schmidts by their answer denied liability as to payment of such claim, and counterclaimed for $5,674.84 which they had paid Guschl. The counterclaim allege defective workmanship in many specified particulars, and the cutting down in size of the kitchen and one bedroom so that they were of a different size than shown in the plans.

The case was tried to the court without a jury, the parties having waived a jury trial. Under date of April 3, 1953, the trial court made and filed the following memorandum decision:

'1. The Court, after careful study of the pleadings and evidence in the principal action, has reached the conclusion that plaintiff has been fully and amply paid for all work and materials furnished in the remodeling job in suit allowing off-sets for defective workmanship. The latter will not be reviewed or described at length in this memorandum decision. Plaintiff's complaint is dismissed upon the merits with costs in the sum of $50.00 plus disbursements. (Sec. 271.04(1) Stats.)

'2. The garnishment proceeding instituted by the plaintiff is also dismissed but without costs.

'3. The amounts demanded in the counterclaims of the defendants are excessive and justly not recoverable by defendants. Deficiencies in the workmanship furnished by plaintiff for which he is held liable are sufficiently charged to him by the dismissal of his action pursuant to paragraph 1 hereof.

'Because of the large and excessive demand urged by defendants in their counterclaims, a cost allowance of $50.00 will be made to the plaintiff to offset the amount of costs stated in said paragraph 1 of this memorandum.

'4. Further facts and details will be embodied in the findings of fact to be signed by the Court after both parties have submitted their proposed findings as they believe the same to be true and just. The Court will upon receiving those submitted by counsel prepare its set of findings of fact and conclusions of law in accordance with this memorandum.'

Thereafter, plaintiff Guschl's counsel submitted to the trial court a set of findings of fact and conclusions of law drafted by said counsel. The findings of fact were brief and were numbered from one to five, inclusive, and such findings and conclusions of law were in accordance with the memorandum decision. The trial judge made no material revision in such findings and conclusions of law and signed the same under date of May 15, 1953.

Apparently thereafter counsel for the defendants Schmidt submitted proposed findings of fact and conclusions of law drafted by said counsel. In contrast to the brief findings of fact submitted by plaintiff's counsel, these findings were lengthy and were numbered from one to twenty-five, inclusive. Such findings set forth in great detail defects in workmanship and failure of Guschl to comply with the plans constituting part of the contract. On this appeal only findings Nos. 23 and 25 thereof need be considered, the same reading as follows:

'23. That the house as remodeled is of less values and of less utility than prior to the remodeling.

'25. That the defendants, however, by reason of the fact that they have demanded the return of all money paid under the contract have made an excessive and unjust demand and that amount adequately and fairly represents the sum to which the plaintiff is entitled, and because of the fact that the defendants have made demand for the return of the amount and such demand is considered to be excessive, no part of the...